31 March 2004

You'll remember that a while back there was a day when I had to do a jury on the fly (see Thursday in this post). I am in the midst of appealing part of the decison now and thought I'd post the objection for the main issue I'm raising but the transcript of that just isn't as articulate as I remembered so I thought I'd post my closing argument instead. The names are changed but I left in all the flaws - some are mine, some are in the transcription, and none are pertinent to the appeal so it was not necessary to order a new transcript. Mr. "Smith" is the Defendant.

MR. LAMMERS: Thank you, Your Honor.

May it please the Court, Madame Commonwealth. Ladies and gentlemen, you heard the Commonwealth's attorney come up here and thank you because your being here was essential to the administration of justice. I don't like to think of it that way. That seems more to me like you are a cog in a machine getting them where they want to get them.

I personally like to think that juries are here as a check on the system to keep people from just flowing through. And as such and as this case demonstrates, juries are obviously brought in on the tougher cases. They aren't bought in on the cases where it is very clear somebody walks in, you know, grabs $200 worth of stuff and runs out the door and starts beating the officer as the officer walks up. You know, those are clear cut. You don't see those in front of juries a whole lot of times.

What we have got here now as the Commonwealth said, there is not a whole lot there to argue about the concealment, about that charge. You can go back in and discuss that one and come to whatever conclusion you wish. And I think what you can see today is that everyone has been pretty honest about that.

Mr. Smith, Ms. Jones and the officer, they all talk about how, you know, he had something in his pants. It was a fairly honest statement all around. And I think that you all have to go back and deal with that one, as much as I would like to be able to come up with some wonderful argument so that you wouldn't have to deal with that one. But I think you do. Think about it a little bit.

Now, as the Judge has told you the standard in a criminal case is beyond a reasonable doubt. I like to put that a little bit in perspective. Now, even if you go back today and find Mr. Smith not guilty, you are not slapping the officer in the face with that. Because you have got to understand that the officer is held to a much lower standard. We do that on purpose. We hold them to a standard that is called probable cause. The standard we hold officers to is probable cause, which it means it is less than probable which is kind of a weird way to put it. The way that I like to think of it is there is probably a cause, probably a reason for the officer to do what he did, to file the charge.

In that case, it is one of those things where the fact that the officer filed the charge doesn't mean someone is guilty. We do that on purpose. Because if someone is running out of the bank as the alarm is going off and he has gun in his hands, we really don't want the officer sitting there thinking, okay, that might be the security guard or that might be the bank robber. You know, we don't want to put the officer in danger so we hold them to that lower standard.

The next standard about that would be what we use in civil trials and that is called preponderance of the evidence. That is where something probably is true. I guess we hold only for money, so we only do that probable.

Then, above that there is something called clear and convincing, which for the life of me I have never been able to get anybody to give me a straight definition on it. But it is above probable and below beyond a reasonable doubt.

Beyond a reasonable doubt is if there is not any other reasonable explanation.

You come in today and you have to weigh the witnesses. Now, obviously, Mr. Smith has a stake in this in saying that it happened a certain way. You know, and that is -- We all know that, that is common sense.

The officer comes in and he has made the charge. You know, he is going to come in -- I am not going to say he is going to lie, but he is going to remember it and he is going to say it in a way that is helpful to the case.

Now, the one person we have in here who is not going to go to jail, doesn't reflect on what she has done or anything is the aunt. It really kind of grates on me that we keep getting told that, well, it is possible that, you know, it happened and she didn't see it. It is possible. She is standing, I think she said from about where that witness stand is to here and she never looks away. She sees it.

Now, the officer tries to take control of the situation, as he is trained to do. He tries to take control of the situation. He puts Mr. Smith and grabs his arm. The testimony of both her and Mr. Smith is he grabs it to put it back behind his back, takes control of him, puts him down. I imagine because they were struggling, he is pretty rough with him.

There again, that is an officer taking care of himself and you can't fault him for that. But both of their testimony is that he didn't turn around and punch the officer. We can see the disparity among these two. I think there is a fairly good reason why he wouldn't turn around and punch that officer. It wouldn't be the sanest thing in the world to do.

I think he probably struggled and probably tried to get away. Now, do I think he put the kind of thought the Commonwealth's attorney seems to be thinking about it, you know, oh, my God, I have got to escape and you know get out of the county, get across the state line, go to Mexico, you know?

No, I don't think he was thinking about that. I think he reacted at a gut level. You know, I think he reacted at a gut level and did the wrong thing. But he didn't attack the officer. He tried to get away. He paid the consequences. He went down. He got charged. He is here in front of you ladies and gentlemen.

Now, there is one other thing I would like to go over a little bit. You are told that, you know, that Officer Green has to be engaged in the performance of his public duty as a law enforcement officer. The officer was plainly truthful to you on the stand that at the time he is being paid by Wal-Mart. He was working security for Wal-Mart.

I really don't like to argue about kind of technical things like that, but I think it is something I am obligated to bring before you. He is not getting paid at that point by Chesterfield County. I mean, he is not getting paid by the State or by Chesterfield. He is getting paid by Wal-Mart. He is working for Wal-Mart.

Now, when he goes to intervene, he is intervening for Wal-Mart. Now, he may intervene further down the road because of certain powers he is granted constantly as an officer as long as he is in Chesterfield County. But, if he was constantly twenty-four hours a day, seven days a week an officer and everything he did was as an officer, you know, whether he was getting paid by Chesterfield or not no matter what he was doing, whether he was getting paid by someone else or not, well then there would be no reason for this instruction here that Officer Green was engaged in the performance of his public duties as a law enforcement officer at the time. So, that is something that I think you have to consider. Like I said, I really don't care to argue those things, but I think it is something that has to be brought up to you all.

In the end, ladies and gentlemen, I think this is a tough case because your gut tells you one thing. We all want to believe the officer is right. I mean, it is just a natural instinct. You want to believe the guy in uniform, the guy out there putting his life on the line doing things for us is right.

I am not asking you here to, you know, use your guts so much. I am asking you here to use your mind and analyze what you have been shown. You have been shown one lady here that nothing has been shown that she is not credible. There is nothing that the Commonwealth has shown to you that she is not credible.

They have hung -- Their best argument they have hung on her is, well, it is possible she didn't see it. That doesn't mean she is not credible. I don't think that that statement -- I mean, it is possible that there is a leprechaun inside this thing [the podium] right now. I don't think so. I am not going to open it. But it is possible. Anything is possible. But it is not likely that if she is standing from there to there that she didn't see something as significant as what they are claiming occurred.

At this point I have to concede the podium back to the Commonwealth's attorney and she is going to stand up here and she is going to tell you why I am wrong about everything I just told you. It happens every time. I sit over here and grit my teeth because I can't get back up and say anything. We have to stop it or lawyers can argue all day long everyday.

So, I have to ask you when you go back to think about what I would answer to what she is saying. Put some analysis into it. Think about what has been said, what is going on.

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Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.